ORDER
This Criminal Petition is filed under S. 482 of Code of Criminal Procedure praying to quash the proceedings in CR No. 30/07 dated 3-3-2007 file by Panamboor Police, Mangalore District, D.K against the petitioners for the offence punishable under Ss. 153-A, 153-B and 295-A of Indian Penal Code on the file of the JMFC-II, Mangalore.
2. I have heard learned counsel for the petitioners as well as learned High Court Government Pleader for the State.
3. The averments made in the complaint are that the complainant belongs to Jain Community. Accused No. 1 is the owner and reporter, accused No. 2 is the owner and accused No. 3 is the Editor and publisher of the newspaper “Karavali Ale”. With an intention to extract money and also to blackmail, certain articles were published in the newspaper “Karavali Ale”. Accused No. 1 along with other accused have published articles in the newspaper with an intention to lower the image of Jain Community and also to wound the religious feeling of Jain Community. It is also mentioned in the articles that the priests were mentally retarded and they should be treated in the mental hospital and they should be arrested and sent to the forest. It is also mentioned that innerwear should be put to Bahubali and Shilabalike of Belur. The photos of priests were published and they have been compared with the naked women and it is also mentioned that the priests should be made to wear innerwear. Jainism preaches peace and non-violence. Therefore, the complainant has lodged a complaint for the offence punishable under Ss. 153-A & B and 295-A of Indian Penal Code against accused No. 1 - Editor, accused No. 2 - owner and accused No. 3 - publisher.
4. The Investigating Officer after investigating the case has filed charge sheet against the accused for the said offences. Feeling aggrieved by the same, accused Nos. 1 and 2 have preferred this criminal petition to quash the proceedings.
5. It is the contention of the learned counsel for the petitioners that in view of S. 7 of the Press and Registration of Bocks Act, 1867 and both the Managing Director and the Directors are not responsible for the publication of any news item in the newspaper and therefore they are not liable for prosecution. It is the Editor who is alone responsible for the publication of the news items in the newspaper. The offence under Ss. 153 and 295-A are not attracted against the petitioners. He relied on Form B - the declaration, wherein it is mentioned that B.S Shivaprasad is the publisher, B.V Seetaram is the Chairman and Director and Smt Rohini Seetaram, is the Managing Director. Both the Managing Director and Chairman are not responsible for the publication and it is the Editor alone who is responsible for the publication of any article in the newspaper. He also relies on the declaration made under S. 7 of the Press and Registration Books Act, 1867 in support of his contention.
Learned counsel for the petitioners relied on the decision of the Supreme Court in the case of K.M MATHEW v. STATE of KERALA reported in AIR 1992 Supreme Court 2206, wherein it is held as follows:
“Section 7 of Press and Registration of Books Act (1867) had no applicability for a person who was simply named as Chief Editor. The presumption under S. 7 is only against the person whose name is printed as ‘Editor’ as required under S. 5(1) of the Act. For a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter. Therefore, in absence of any positive averments against the Chief Editor, the Magistrate could direct that the complaint so far as it related to the Chief Editor could not be proceeded with. To ask the Chief Editor to undergo the trial of the case merely on the ground of issue of process would be oppressive.”
Learned counsel for the petitioners also relied on the ruling of this Court in the case of C.B SOLANKI v. SRIKANTA PARASHAR reported in 1997 (2) Kar. L.J 500, wherein it is held at headnote (A) as under:
“INDIAN PENAL CODE, 1860, Ss. 499, 500, 501 - Press and Registration of Books Act, 1867, Ss. 1(1) and 7 - Defamation - Offence of printing and publishing of matter defamatory - presumption of criminal liability under S. 7 of Act of 1867 against “Editor” who is defined under S. 1(1) of Act of 1867 as one who selects or controls selection of matter for publication - Presumption cannot be extended to others who are not designated as “Editors” but as “Chief Editor”, “Managing Director”, etc. - To implicate latter, there must be positive averments against them and in absence of such averments they cannot be proceeded against for offence under Ss. 499, 501 and 502 of IPC.”
He also relied on the decision of this Court in the case of THE EDITOR, The Editor, Deccan Herald v. Prof. M.S Ramaraju* reported in 2005 (2) KCCR 1295. Paragraph 12 of the judgment reads as follows:
“It appears that all that the petitioner had done was, he published the report that was given but the Secretary of the Trust and in the absence of any allegation having been made in the said news item against the respondent by the petitioner, it cannot be said that the publication of the said news item brings the case within the ambit to S. 499/501 of the IPC.”
He also relied on the decision of this Court in the case of PRABHU CHAWLA v. A.U SHERIFF reported in 1995 Crl. L.J 1922, wherein head notes (A) and (B) read as follows:
“(A) Criminal P.C (2 of 1974), S. 482 - Quashing of criminal proceedings - Complaint filed under S. 500 IPC read with S. 34 IPC for allegedly defaming complainant by publishing certain articles in newspaper - Allegations made in complaint not disclosing offence of defamation - Order taking cognizance of alleged offence on basis of said allegations - Is illegal and amounts to abuse of process of Court - Proceedings quashed.
Where the allegations made in the complaint when taken at their face value and accepted in their entirely do not prima facie constitute any offence. The proceedings before the Magistrate can be quashed by exercising the power under S. 482 CrPC. Thus, where in a complaint filed under S. 500 IPC read with S. 34 IPC for allegedly defaming complaint by publishing certain articles in newspaper and the allegations made in complaint do not make out any offence of defamation against the complaint, the order taking cognizance for an offence under S. 500 IPC on the basis of said allegations in the complaint would be impermissible and therefore the entire proceedings would be quashed under S. 482
(B) Press and Registration of Books Act (25 of 1867), Ss. 7, 1(1) - Defamatory article allegedly published in newspaper - Complaint for offence of defamation filed against petitioners - executive editor, managing editor and resident editor - No allegations against petitioners showing that they have any hand in selection of matter that is published in newspaper - Presumption under S. 7 against them, not attracted - Order issuing process against petitioners to face trial for defamation, not proper.”
It is the contention of the learned counsel for the petitioners that the Editor is alone responsible for the publication of the news and therefore, the Chairman, Managing Director and Director of the company are not responsible for the same. Therefore, he prays to quash the proceedings against these petitioners.
6. Learned High Court Government Pleader appearing for the respondent - State submits that after investigation, the charge sheet has been filed against the petitioners. The accused have to produce the rebuttal evidence before the Trial Court to show that they are not responsible for printing and publishing the articles in the newspaper.
7. The allegation in the complaint reveals that accused No. 1 along with accused Nos. 2 and 3 conspired together and published the articles in the newspaper with an intention to extract money. The allegation made in the complaint also reveals that the articles published in the newspaper are defamatory in nature.
8. Though, it is the contention of learned counsel for the petitioners that the Editor alone is responsible for publication of the articles, in the case of K.M MATHEW v. K.A ABRAHAM reported in (2002) 6 SCC 670, the Hon'ble Supreme Court has held as follows:
“There is no statutory immunity for the Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control.
Sections 7, 1(1), 5, 8-A and the preamble of the Act clearly show that there could be a presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still alleged the prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under S. 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than the Editor can also be held responsible for selecting the matter for publication in a newspaper.”
In the same ruling, the Hon'ble Supreme Court has also held as under:
“The inherent power of the Court under S. 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open for the Court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out.
Any and every irregularity or infraction of a procedural provision cannot constitute a ground for interference by a superior Court unless such irregularity or infraction has caused irreparable prejudice to the Party and requires to be corrected at that stage itself.”
9. Though it is the contention of learned counsel for the petitioners that in view of S. 7 of the Press and Registration of Books Act, 1867, the chairman and the owner are exempted or protected from the prosecution, but the Hon'ble Supreme Court in the case of K.M MATHEW v. K.A ABRAHAM reported in (2002) 6 SCC 670, has held that the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item and the presumption under S. 7 is a rebuttable presumption. Such being the case, it is difficult to accept the contention of the learned counsel for the petitioners that the Chairman and the owner are not liable for prosecution. The allegation made in the complaint is that accused Nos. 1 to 3 jointed together to publish the defamatory article and this constitutes the offence alleged against the petitioners. In this case, investigation has been completed the charge sheet has been filed for the offence punishable under Ss. 153-A & B and 295 of IPC. Filing of charge sheet constitutes prima facie case against the petitioners. The ruling cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of this case. This is not the rarest of the rare case, wherein this Court can exercise its inherent power to quash the proceedings. Considering all these aspects, I am of the view that this Criminal Petition is devoid of merit and is liable to be dismissed.
10. In the result, I pass the following:
ORDER
This Criminal Petition is dismissed.
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